Inkwell: Authors and Artists
Jon Lebkowsky (jonl) Mon 23 Jan 12 06:13
On January 18, many websites went dark as part of a web strike protesting two proposed bills, the Stop Online Piracy Act (SOPA) proposed in the house, and the Protect IP Act (PIPA) proposed in the Senate. Both bills proposed to "rogue websites dedicated to infringing or counterfeit goods." Many Internet experts felt the bills would "break the Internet" and have a chilling effect on the sharing of legitimate content. Proponents withdrew the bills after the protest, in which some sites (Wikipedia, Reddit, Boing Boing) were effectively offline - a symbolic gesture suggesting that these sites would be forced offline permanently if the laws were adopted. While these specific bills were withdrawn, similar bills are expected, this time with more input from Internet experts. We've asked Internet-savvy attorney and author Mike Godwin to discuss the context for these bills, the bills themselves, and what might follow now that they've been dropped. Mike was first counsel for the Electronic Frontier Foundation (EFF) and, from 2007 through 2010, general counsel for the Wikimedia Foundation. He's currently a member of the Open Source Initiative board. Mike was one of the first specialists in Internet law, and supervised their sponsorship of the historic Steve Jackson Games case in the early 1990s. He was counsel for the plaintiffs for the Supreme Court case arguing successfully against the Communications Decency Act in 1996. From 2003 to 2005, Mike worked with Public Knowledge, focusing on copyright and technology policy, including the relationship between digital rights management and American copyright law. he supervised litigation that successfully challenged the Federal Communications Commission's broadcast flag regulation that would have imposed DRM restrictions on television From October 2005 to April 2007, Godwin was a research fellow at Yale University, holding dual positions in the Information Society Project (ISP) at Yale Law School, and at the Yale Computer Science Department's Privacy, Obligations and Rights in Technologies of Information Assessment (PORTIA) project. We welcome your participation in this conversation, which will run through the first of February. If you're not a member of the WELL but have a question or something to add, email inkwell at well.com.
Jon Lebkowsky (jonl) Mon 23 Jan 12 06:14
Mike, welcome to Inkwell. Could you start the discussion by giving your views on SOPA and PIPA? What's the gist of the argument that these bills would have been bad for the Internet?
Tupac Chopra (mnemonic) Mon 23 Jan 12 08:37
I'll start by noting that the last time I was a guest of an inkwell.vue discussion, as I recall, was when I published CYBER RIGHTS: DEFENDING FREE SPEECH IN THE DIGITAL AGE back in 1997. The title itself seems quaint now, because we no longer think of "the digital age" as something new -- we're soaking in it. And events changed so quickly after 1997 that when I revised CYBER RIGHTS just a few years later, I had to add 70-100 pages of new material. And now even the second, revised edition is more a historical snapshot than a guide to the current state of the law. Which brings us to the Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA). When I revised CYBER RIGHTS for the MIT Press edition in 2003, I had to add a lot of material about the Digital Millennium Copyright Act (DMCA), which set the stage for copyright law enforcement for the last decade. There are good reasons to be critical of the DMCA (and I published some criticisms about it early on), but there's one aspect of the DMCA that pretty much everybody agrees turned out okay -- the "notice-and-takedown" provisions that provide a great deal of protection for internet service providers (including everything from Google to the WELL). What notice-and-takedown provisions gave ISPs was a straightforward way to respond to copyright complaints when a user (intentionally or unwittingly) posted copyrighted material to a website. If someone posted (for example) a chapter of CYBER RIGHTS to the Well without my permission, I could send a formal notice to the WELL and, provided the WELL did "take down" the allegedly infringing material, the WELL would face no copyright liability -- even if WELL users managed to copy my chapter for their own use or sale in the interval between the time the chapter was posted and the time the WELL received the notice. This was a boon to internet intermediaries that posted user-generated content -- it provided a "bright-line" rule that, if followed, created immunity for service providers. And this easy-to-comply-with rule made it possible for countless online services, from Google to Reddit to Wikipedia, to operate the way we understand them today. At the same time, it allowed copyright owners to go after users who originally posted the (allegedly) infringing material. Web providers -- even services like Google and Yahoo!, which have to respond to thousands of "takedown notices" a week -- liked this setup just fine. Copyright owners and their representatives (think the Motion Picture Association of America or the RIAA or the Harry Fox Agency) decided over the last decade that they didn't like this setup much at all. They'd rather sue Google (a rich defendant) than some middle-school student who'll never be able to pay a copyright fine. And what's worse, in their view, is that the internet is an international phenomenon now. So not only are the copyright industries in the position of having to sue people with no money, but they have to sue them *in foreign countries*. It's hard out there for a ... publisher (as Terrence Howard or Three 6 Mafia might sing in a remake of "Hustle & Flow" today). Which brings us to SOPA and PIPA. You can find a good introduction to the issues here: <http://en.wikipedia.org/wiki/Stop_Online_Piracy_Act>, but I want to add a larger theme to the discussion of these two parallel pieces of legislation. That theme is this: for most of the history of copyright law, the duty to maintain and enforce copyrights fell largely on the copyright owner. That is, if you held a copyright, you had certain duties to register it, to protect your rights regarding the copyrighted work, and so on. Over time, however, the copyright-industry lobbies have been successful in pushing those duties out to other entities, including but not limited to law-enforcement agencies such as the FBI. Even the DMCA (passed in 1998) can be understood this way, although a website hosting allegedly infringing material could refuse to comply with the notice-and-takedown provisions (and risk civil and maybe criminal liability under U.S. and foreign copyright laws). Even that, though, has not been enough to satisfy the copyright industries. In a world in which anyone with access to a search engine can find a .torrent file for a recently released film on (say) ThePirateBay.org, the copyright industries want to expand the duties of internet service providers even further. They'd like to be able to require -- with a little or no judicial oversight -- that Google or Bing or Yahoo! or Reddit or Wikipedia -- remove links that (the complainants assert) cause infringement. Or else face some serious legal consequences. So they came up with SOPA and PIPA and found sponsors in the U.S. Congress to promote those bills ... which until the last couple of weeks seemed dead certain to pass. And here's where the complaints about SOPA and PIPA "breaking the internet" come in. Because the reason we find the Web so useful is that merely linking is not itself generally considered to be an infringement of copyright. And links are the lifeblood of the internet as we know it today. Putting Google or Wikipedia or anyone else in the position of having to police all the links they provide would, in fact, "break the internet" -- at least according to me and other critics of the proposed legislation. The dream of being able to follow associative links from one information source to another -- a dream with roots in the writings of Vannevar Bush, Ted Nelson, and others, and which came to first fruition in the work of Sir Tim Berners-Lee -- may be at risk if all our service providers are legally bound to remove links at the whim of (purported) copyright owner. (Or, worse, in anticipatory fear that such complaint *might* be made.) But don't take my word for it -- just read this incendiary radical pamphlet published by those unrepentant socialists at Forbes: <http://www.forbes.com/sites/thesba/2012/01/23/sopa-is-bad-for-small-business/> (And now that I'm crowding 1000 words in my first posting, I'll give jonl and others a chance to steer my free-association contributions here into something responsive to whatever questions you may have.)
Tupac Chopra (mnemonic) Mon 23 Jan 12 08:43
One more thing: Jon, if you'll remind me what the best link is for off-WELL readers to follow and contribute to this colloquy, I'll tweet it and status- update it, etc.
Peter Meuleners (pjm) Mon 23 Jan 12 08:45
What an excellent idea for an Inkwell topic! I had been intending to do so some in depth reading on these.
Tupac Chopra (mnemonic) Mon 23 Jan 12 09:20
Here's a good update from Congressional Quarterly: <http://public.cq.com/docs/weeklyreport/weeklyreport-000004014002.html>
Gail Williams (gail) Mon 23 Jan 12 09:49
Here we go: The long form external link for free reading is http://www.well.com/conf/inkwell.vue/topics/431/Mike-Godwin-discusses-SOPA-PIP A-page01.html http://tinyurl.com/inkwell-godwin Or use your own favorite shortening device.
Tupac Chopra (mnemonic) Mon 23 Jan 12 10:40
Okay, here's some fairly astonishing news from Broadcasting & Cable magazine: Report: SOPA/PIPA Web Protest Generated More Online Chatter Than Super Bowl <http://bit.ly/xkV5fW>
Jon Lebkowsky (jonl) Mon 23 Jan 12 11:57
That's encouraging, though it would be interesting to see sentiment analysis (if you believe in that sort of thing). It would also be interesting to know, among those who opposed SOPA and PIPA, how well they understood the context and meaning of the legislation.
Jon Lebkowsky (jonl) Mon 23 Jan 12 12:03
You mention one issue of "breaking the Internet," which is not technical, but a policy-driven chilling effect. Are there more technical issues? What is the implication of blocking or rerouting requests to specific domain names?
Tupac Chopra (mnemonic) Mon 23 Jan 12 12:18
@jerrybrito at Time thinks the reason the protest was so wide and so successful is that most people it, more or less. "It's unlikely we'll see the type of action that we saw last week very often. The reason is that the SOPA issue has a unique set of characteristics that allowed it to take advantage of the Internet's latent power to overcome rational ignorance and to facilitate collective action by large groups. "First, one needed to learn very little about SOPA to gain at least a superficial understanding of the issue and to form an opinion about it. That was especially true for the tech-savvy community at the center of the protest. Other issues will be much more complex and surmounting rational ignorance will not be as simple." Read more: <http://techland.time.com/2012/01/23/why-we-wont-see-many- protests-like-the-sopa-blackout/#ixzz1kJVfbIsX> Or try this: <http://goo.gl/AP2Qz>. The point I think Jerry misses is that you really don't want to have this kind of widespread blackout protest very frequently, because the audience you're trying to reach is likely to become either bored or, worse, resentful. Still, the blackout is (incredibly to jaded old me) something of a watershed moment in DC circles. Policymakers either didn't believe there'd be widespread protest, or didn't think it would matter, or didn't anticipate the bills' passage could even be slowed, much less stopped. Take the Congressional Quarterly story I linked to above -- it's rare to see a CQ reporter publish something quite so breathless as this: "The Web Rises Up, Hill Backs Down "By Keith Perine, CQ Staff "One thing is clear after last week's widespread Web-based protest against bills aimed at cracking down on online piracy: The Internet now has a seat at the bargaining table. "Thousands of websites, including Wikipedia, Google and Reddit, made grass-roots lobbying history Jan. 18 by going dark or posting prominent statements of opposition to the online piracy legislation, saying the measures would give the government broad censorship powers. The impact was immediate and unprecedented: Throughout the day, House and Senate cosponsors pried their names off the bills, tweeting and posting their newfound concerns. By week's end, Senate Democrats had scrapped plans to take the measure to the floor Jan. 24. House Republicans retreated as well...."
Tupac Chopra (mnemonic) Mon 23 Jan 12 12:29
'You mention one issue of "breaking the Internet," which is not technical, but a policy-driven chilling effect. Are there more technical issues? What is the implication of blocking or rerouting requests to specific domain names?' As a technical matter, legislatively mandated DNS blocking can be sidestepped by anyone determined enough, and it doesn't require a huge amount of technical knowledge. The more significant impact of the legislation would be to put the search engines, link aggregators, and services like Wikipedia in the role of copyright policemen -- except they'd be policemen with little judicial oversight or other constraints. The most likely short-term outcome would have been for search engines to self-censor, in order to keep their administrative overhead manageable. In other words, instead of waiting for the countless demands they'd get from copyright holders, they'd likely be compelled (by economic factors as much as political ones) to start blocking sites that even seemed as if they might be facilitating infringement. And they'd likely do this mechanically/algorithmically -- there are too many websites out there for anybody's staff to review stuff effectively. So you can imagine what might happen to a purely informative web page like this one: <http://en.wikipedia.org/wiki/The_Pirate_Bay>. You and I can see that it's an encyclopedia article, but for a computer algorithm based on search terms, it's full of red flags.
Jon Lebkowsky (jonl) Mon 23 Jan 12 13:56
Shabbir Safdar and Jonah Seiger, who collaborated on the campaign to make web page backgrounds black as a protest against the Communications Decency Act in 1996-7, once told me that they didn't think it could happen that way again, that they hit the right time. Color page backgrounds had just been added to the html spec, and many of the companies involved were just small and rowdy enough to jump into the fray. The current campaign was helped quite a bit by Wikipedia's and Google's participation - those were both so noticeable during the day - but also by the distribution of relatively easy to use plugins for Wordpress sites - there's a LOT of those. Do you think the protest is over? We didn't quite make the argument, supported by many, that we need to rethink copyright for the digital age. We still don't have a broadly held understanding of the current mediasphere, how it differs from mass media. We're in a confusing transitional era, it seems to me.
Mike Godwin (mnemonic) Mon 23 Jan 12 15:23
I think Shabbir and Jonah were wrong on that issue because they believed the success of their campaign was the function of a kind of technical evolution of Web standards combined with the comparative youth of commercial presence on the Web. In my view, the potential for a Web-wide protest never went away -- it was inherent in many-to-many communications media, and, in reality, it actually has grown. The Blue Ribbon free-speech campaign was just the beginning. Keep in mind too that the CDA protest was not itself the trigger for any political action -- the CDA did, after all, pass and was signed into law by President Clinton. And the people who opposed the CDA -- who argued that it was flatly unconstitutional -- had taken that view as early as 1994 when then-Senator Jim Exon first proposed it. Their opposition wasn't driven by any outcry on the internet, and the Web was just beginning to take off. What killed the CDA ultimately was not political action or public outcry. (Probably most Americans at the time thought the internet was in fact out of control and relentlessly exposing their kids to porn.) Instead, it was the irreducible fact that the constitutional scholars were right about why the law couldn't survive judicial scrutiny. And they were so right that even the conservative justices on the Supreme Court felt compelled to strike the CDA down, simply as a matter of constitutional law and precedent. What Shabbir and Jonah did, and the reason their work was important, was that it was a kind of political "proof of concept" -- that political organizing could, in fact, be mediated by the internet. This was before most blogs, before MoveOn, before the Tea Party and Occupy movements. It was a period in which commentators as different as Gary Chapman and David Frum dismissed the internet as "trivia and sleaze" (Chapman's words) or "a cheap and convenient way to send letters and buy books and compact discs" (that's Frum). What Chapman and Frum had in common, at least at the time, was that the internet was politically irrelevant because it wasn't being used for political purposes, in their view. (Chapman's comments came before Shabbir and Jonah's efforts, and Frum's came after, but both shared a kind of disdain for the fact that most people using the internet in that period were mainly having fun with it.) Ironically, MoveOn originated the same year that Frum offered his "cheap and convenient" judgment, and in the years since then, MoveOn has had rather more of a political impact than David Frum ever did. But to come back to the present -- the SOPA blackout/brownout had a direct effect on the American political process that in my mind was unprecedented by anything Shabbir and Jonah and Voters Telecom Watch ever did. You had representatives and senators pulling support from the House and Senate bills *that very day*. This doesn't diminish Jonah's and Shabbir's pioneering work -- I was running EFF's Pioneer Awards that year and we honored them for the Blue Ribbon Campaign. But instead of viewing their accomplishment as irreproducible, we built upon it and proved that voices amplified by the internet could change the direction of political discourse in days -- arguably in hours. One of the great things I've been lucky enough to live to witness has been the predictions that I made, and that others at EFF made, about the social and political impact of the internet have begun to come true. I should add at this point, by the way, that I wholly disagree with those critics who have argued that Arab Spring wasn't significantly amplified by Twitter and other internet tools -- all these disintermediated communications technologies promote increased collaboration and direct political action, and that's something that isn't going to change anytime soon. If we're lucky enough to live long enough, I expect we'll see it altering even the political environment of the People's Republic of China, although I'm not foolish enough to imagine this will lead to a predictable result.
Mike Godwin (mnemonic) Mon 23 Jan 12 16:02
To answer your last question: is the protest over? In a sense, yes, it is. The SOPA/PIPA blackout killed the momentum of the current House and Senate bills, and while it's theoretically possible they can be revived even now, as a political matter they seem to be pretty much stalled. If they stay stalled for a few more weeks, the political season will really kick in, and Congress will be too distracted to put forward a controversial bill unlikely to gain them a lot of votes or positive media exposure. Is the fight over? No. The fight is never over. If there's one lesson I learned in my years in DC, it's that one.
Ted Newcomb (tcn) Mon 23 Jan 12 16:58
<We're in a confusing transitional era, it seems to me.> #12 That's it in a nutshell. The world has gone digital and transnational. Law has not. These corporations would like to misdirect the efforts to a national platform because they don't have recourse to anything else that is monetarily effective. We're all in the breach and it's going to be a long fight to guarantee our digital rights. EFF is going to have its hands full for years to come.
Jon Lebkowsky (jonl) Mon 23 Jan 12 20:47
Mike, do you see the withdrawal of SOPA and PIPA as a victory of the technology industry over the content/media industry, as some say? Or is that analysis too simplistic?
Mike Godwin (mnemonic) Tue 24 Jan 12 02:33
I think the analysis is in fact too simplistic because it implicitly accepts what traditional DC circles see as the conventional wisdom about regulation of this sort -- that it's just one industrial sector versus another. But if this had just been an instance of tech industrial players fighting the studios and publishers, it would have been much less newsworthy, because industrial economic interests quarrel with each other in policy debates all the time. What mattered here was that individual citizens made their voices heard, and most of those citizens -- the people who vote, after all -- lined up on one side of the debate. There's widespread sentiment in the copyright industries that not only were citizens misled about SOPA/PIPA, but also that it was somehow unfair that citizen action was mobilized in a way that stalled progress on the legislation and sidestepped the usual policy process in Washington (when lobbyists focus on private briefings with policymakers ... or, more likely, their staff members ... and try to cut a tolerable compromise deal). This of course is a humorously out-of-touch notion about what counts as "unfair" -- most students who've had a basic civics class get that the ordinary lobbying process is rather more unfair than petition drives and public protests. The joke is made even funnier because the movie industry and the publishers and the songwriters are supposed to be so good at telling persuasive stories -- it's their stock in trade, after all. But telling compelling (and true) stories is not just the province of professional, paid creators -- it's a fundamental attribute of being human. And in this instance, the human beings who were witnessing yet another expansion of content-company control over copyright law seized control of the narrative, and none of the Hollywood storytelling experts ever got it back. In short, this wasn't a battle between two dinosaur-sized industries having it out in a primeval conflict -- it was about the small, adaptable, quick and warm-blooded mammals outsmarting a process that previously had favored behemoths.
Rob Myers (robmyers) Tue 24 Jan 12 04:50
The copyright industry are delusional about why they lost this round. But I don't think they can afford to face up to reality, so I assume they will simply ignore it and try to find a new way of making the same arguments. It's tempting to think that they will simply try and try and try again until they do break the Internet. Is there anything more strategic that can be done by those of us who don't want that to happen?
Ed Ward (captward) Tue 24 Jan 12 04:59
And yet, it would seem that piracy does remain a problem, and it needs to be dealt with. I was shocked to find an article posted at the Cato Institute, of all places, making a lot of sense: <http://www.cato-at-liberty.org/internet-regulation-the-economics-of-piracy/> If he's right, it's the 1% of copyright creators, so to speak, who suffer the biggest losses from this piracy. But, as a copyright creator myself, I wouldn't mind if things were made a little tougher for thieves, if only because maybe then the copyright industries (music, film, publishing) would stop freaking out and turn their attention to more important matters. We make little enough as it is these days, after all, and thievery even extends to little things like my blog, which has been hijacked by a SEO guy and renamed as a way of distracting search engines from his "herbal supplement" client's conviction for mail fraud. I'm not making much money off the blog, but I just plain resent that.
Jon Lebkowsky (jonl) Tue 24 Jan 12 06:07
I think "piracy" is the wrong term for most of the sharing and copying we see on the web. A pirate is into robbery, often using violence. The meaning of the term is associated with physical theft: I take something from you, and you don't have it anymore, which is not the case with replicable digital media. Most of the "theft of intellectual property" that content companies are concerned about are from an entirely different intention than you would associate with piracy - for the most part those who are torrenting digital media for others to download aren't motivated by greed, aren't making a dime from those shares. I'm not arguing that what they're doing is right, but that "piracy" is the wrong term. I can think of a hierarchy of distinctions: ripping intellectual property to resell would be the worst case, but I think it's rare in an environment where digital content is freely shared. Stealing content to fill your own content sites, covering them with ads etc., is a not-uncommon form of theft and, as Ed suggests, particularly egregious. However I can't imagine that some guy ripping your site has negative impact on the value of your content - much of that value is in the context you've created and its association with your personal brand. Your writing is brilliant, and people come to your blog to read Ed Ward's brillant writing - this other guy probably isn't on anyone's map; they might hit his site by accident. (I think site cloners have a screw loose, personally - though I suppose if they have a thousand sites covered with ads, they might have an income stream). I personally think content companies have other worries than file sharing, though it no doubt has some impact on their profits, especially the music industry. But a bigger problems for all content industries are that 1) they haven't quite worked out the models for digital distribution, 2) Their value chains are disrupted by digital distribution models, whether they're legal and paid or "piracy," and 3) legal free content and user interaction are competing for mindshare, and winning. Furthermore the movie industry is suffering from corporate control and a lack of creativity. It's a bad sequel to the movie industry we knew and loved. People will still go to movies for the theatre experience, but not if they're paying 12 bucks for lame content. Many would rather watch flashes of five minute brilliance on YouTube.
David Wilson (dlwilson) Tue 24 Jan 12 07:36
But "piracy" as theft is what the copyright creators want to make indelible to the public perception. Their public relations statements always include that as a talking point. Your distinctions while a good summary of behaviors is irrelevant to the soundbite impact they are going for. I'd like to see the discussion veer into looking at the problem more as attempts at protecting monopolies. While not exactly comparable in a legal sense, the copyright creators start out with the assumption that since they own the content, they can control everything.
Rob Myers (robmyers) Tue 24 Jan 12 10:32
descend into a fractal hell of meta-truthiness (jmcarlin) Tue 24 Jan 12 10:38
What do you think about the effect of the Megaupload takedown on any revival of SOPA/PIPA, if any? Does the Megaupload takedown prove that SOPA is unnecessary? <http://www.washingtonpost.com/blogs/ezra-klein/post/does-the-megaupload-takedo wn-prove-that-sopa-is-unnecessary/2012/01/23/gIQAi7A0KQ_blog.html> http://tinyurl.com/7ruuwrr
descend into a fractal hell of meta-truthiness (jmcarlin) Tue 24 Jan 12 10:38
We just had a "slip" where two comments came in at about the same time asking about the same question.
Rob Myers (robmyers) Tue 24 Jan 12 10:49
Mine is different and more paranoid. :-)
Members: Enter the conference to participate